 |
|
 |
| ||
 |
|
 |
Excerpt from this article first published in Human Resources Magazine, Issue 165 - 11 November 2008
In a recent unfair dismissal case, the AIRC found that a company (Cheetham Salt) had a valid reason to terminate an employee with nearly 19 years service (Ms Royle), but the manner in which the dismissal was carried out was harsh and unfair.
It was found by the Commission that Ms Garner, an employee of the company and former secretary to the CEO, told Ms Royle (an administrative employee) that she was mistakenly receiving the confidential emails of the CEO. Ms Garner disclosed to Ms Royle the contents of three confidential emails which included the restructuring of the company, management bonuses, staff not working until 5pm and details of employees receiving gift certificates. Ms Royle did not alert management to the fact that Ms Garner was receiving and disclosing confidential emails. Ms Royle argued that the conversations that she had with Ms Garner were merely passing conversations and treated no more than as office gossip. Ms Royle maintained that she had not accessed or disseminated the confidential emails. Both Ms Garner and Ms Royle were summarily dismissed.
The Commission found that, while Ms Royle had not accessed the emails, she had read the confidential emails and disclosed the information that was contained in those emails. Ms Royle had utilised the information to allow other employees to think that she was up to date with the company, aware of the personal information of other employees and to protect her own interests. For instance, in light of information she had received from a confidential email, Ms Royle told another employee not to work past 5pm as it was giving other employees a bad name. Other instances of Ms Royle disclosing the contents of the confidential emails included her questioning other employees whether they had received pay rises or gift certificates when she had knowledge that those particular employees had received pay rises and gift certificates. Ms Royle was also found to have told her husband, a former employee of the company, about the content of some of the confidential emails.
The Commission acknowledged that Ms Royle did not gain financially from the disclosure of the confidential information. However, it found that what Ms Royle did was wrong as it had the potential to damage the reputation of the company and it was contrary to the personal privacy that Ms Royle's colleagues should be able to expect. As a consequence, Ms Royle's actions diminished the company's and some employees' trust and confidence in her such that it was untenable that she remain an employee. On this basis the Commission concluded that the company had a valid reason to terminate Ms Royle.
The Commission then turned to the manner of the termination. After it was identified that Ms Royle may have had access to the confidential emails, Ms Royle was required to attend a meeting with the company. She was not told the purpose of the meeting. During the meeting the allegations were discussed and Ms Royle was told that she was being summarily dismissed.
In respect of the manner in which Ms Royle was summarily terminated, the Commission found that Ms Royle was unaware of the seriousness of the meeting she was required to attend, that it concerned the email issues or that her employment would be jeopardized. As a result, Ms Royle did not take up the offer of having a witness at the meeting. The Commission found that the allegations were not put to Ms Royle in sufficient detail at the meeting. Further, as there was no break in the meeting between advising Ms Royle of the allegations and her dismissal, the employee did not have the opportunity to consider the allegations or discuss them with anyone, nor did the company have time to further consider the issues. As a result the Commission concluded that, despite the Company having a valid reason to terminate Ms Royle, it did not afford her a fair go all round and the termination was harsh.
The Commission ordered that Ms Royle be paid compensation equivalent to the amount she would have received if she had been given notice of her termination and provided for payment in accordance with her notice period. Accordingly, the Commission ordered that Ms Royle be paid 5 weeks compensation.
This case highlights that even if an employer has a valid reason for terminating an employee, it must follow a fair process for the termination. Such fair processes are likely to include advising employees prior to a meeting of the seriousness of the meeting where it may lead to their termination, putting the full detail of all allegations to the employee for their response, providing sufficient time for the employee to consider the allegations and respond, providing sufficient time for the employer to consider the employee’s response to the allegations and any other issues.
Jessica Lee
Senior Associate
